Larry Flynt’s Hustler Club is suing to keep the taxman’s paws off its profits — by claiming the state violated the jiggle joint’s First Amendment rights by levying fees against risqué routines while letting operas and Broadway shows skirt sales tax.
The government’s 8.5 percent take from the W. 51st Street flesh emporium is “an impermissible taxation upon constitutionally protected expression,” club lawyers claim in a new Manhattan civil suit.
An obscure state tax loophole exempts “any roof garden, cabaret or other similar place which furnishes a public performance for profit.” Performance is defined as “live dramatic, choreographic or musical performance.”
“The Hustler Club regularly presents upon the premises, to the consenting adult public, a variety of non-obscene presentational dance entertainment, some of which involves clothes entertainers and some of which involves entertains performing while topless,” the strip club owners claim in court papers.
“The United States Supreme Court has ruled in numerous cases that presentational dance entertainment, including that which is of a ‘striptease variety – and whether clothed, ‘topless’ or full nude – is presumptively protected expression under the First Amendment to the U.S. constitution.”
Club attorneys take the state Department of Taxation auditor to task for never stepping foot in the adult entertainment establishment to get a first-hand glimpse at the drama.
When determining what type of venues are taxed, auditor Renel Saint–Amour said, “It is related to dramatics, things that are preformed at an opera house and not in terms of a social club that provides exotic dancers or the so-called gentleman’s club.”
“What is performed at the club is entertainers that perform laptop dancing. We don’t view that as a dramatic event,” Saint-Amour sniffed in a 2013 administrative hearing about the fees, according to court papers.
He admitted, “I have never been to a gentlemen’s club, but I do know they are not the same” as performance halls like operas and Broadway that are not taxed.
The Hustler Club sued after a state administrative judge ruled in February that the jiggle joint had to cough up $2.1 million in contested taxes because the services were “sexual fantasy, not dance.”
That decision puts “an impermissible prior restraint on speech and expression…based upon the content of such expression,” the club says in the suit to prevent future fines from being levied.
A rep for the state did not immediately comment.